Rates of Maintenance in Contracts of Employment Not Enforced When too Low to Reimburse Reasonable Expenses for Recuperating Seamen

By John Merriam

On May 6, 1999 a federal judge in the Western District in Washington ruled that a $20 per day rate of maintenance, contained in a contract of employment for a fisherman, was not necessarily binding as a matter of law. On July 29, 1999 the Washington State Supreme Court ruled that an $8 per day maintenance rate, contained in a collective bargaining agreement between union merchant seamen and a group of shipowners, was not necessarily binding as a matter of law. Both decisions held that the amount of maintenance needed to support a seaman during his or her period of recuperation was an issue of fact to be decided at trial.

Judge Coughenour recently refused to enforce, as a matter of law, a maintenance rate contained in an individual contract of employment if it was shown at trial, as a matter of fact, that the recuperating fishermen could not pay for his reasonable living expenses on $20 per day.

Plaintiff Ed Rowell slept on the couch at his sister's house in New Hampshire when, he was not fishing in Alaska. For this privilege he paid $500 per month and contributed to food and utility bills. In late 1996 and early 1997 Rowell was twice injured aboard the Tyson Seafoods' crabber Pacific Wind and went back to his sister's couch to recuperate.

The contract of employment between Rowell and Tyson set maintenance at $20 per day. When adding expenses for food and utilities to the plaintiff's contribution to his sister's mortgage, Mr. Rowell's living expenses slightly cxceeded $20 per day.

Plaintiff moved for partial summery judgment, seeking a declaration that the $20 per day contractual rate of maintenance was not enforceable as a matter of law. Judge Coughenour granted the motion, ruling: "A seaman's right to a reasonable payment for maintenance is a legal right that cannot be ordinarily be abrogated by contract." Rowell v. Tyson, No. C98-1443C, 1999 AMC 2277 (W.D. Wash. 1999). Judge Coughenour did not preclude Tyson from arguing at trial that Mr. Rowell could have found a cheaper couch. Id.

The case later settled so there will be no appeal to the Ninth Circuit, Plaintiff was represented by John Merriam, Tyson was represented by Dennis Moran of LeGros, Buchanan & Paul.

John Lundborg was an able seaman aboard the former Texaco tanker SS Keystone Rhode Island during the summer of 1995. He left the vessel with an ankle injury in Portland, Oregon and received maintenance from Keystone for twenty-four days until he was cleared to return to work. The rate of maintenance was $8 per day in the collective bargaining agreement between Keystone and the National Maritime Union (NMU). Mr. Lundborg retained counsel when paid only $196 for being out of work for 24 days.

The federal Ninth Circuit enforced an $8 per day rate of maintenance in Gardiner v. Sea-Land, 786 F.2d. 943, cert. denied, 479 U.S. 924 (1986). Lundborg brought suit against his employer in state court, attempting an end run around the stare decisis of Gardiner.

Lundborg lost on liability at MAR arbitration, lost at his attempts to get more maintenance and some amount of unearned wages for a coastwise voyage, and was finally thrown out of court on summary judgment. Mr. Lundborg's total compensation for his on-the-job injury, which cost him a goodpaying union billet, was $8 per day for 24 days.

Plaintiff appealed only the summary judgment rulings enforcing the $8 per day rate of maintenance and the denial of unearned wages on a coastwise voyage past the port of debarkation.

Division One of the state Court of Appeals ruled against Lundborg on the unearned wage issue but reversed on the $8 per day rate of maintenance, refusing to follow precedent in federal appellate courts for the Ninth, Sixth, Fifth and First Circuits. Lundborg v. Keystone Shipping Co., 89 Wash Арр. 886 (1998).

Keystone petitioned the state Supreme Court for review on the $8 per day decision. Lundborg cross-petitioned on the unearned wage issue.

The Washington Supreme Court likewise refused to follow the Ninth Circuit on the $8 per day issue of federal maritime law, instead modifying slightly the ruling of Division One. Division One was affirmed on denial of unearned wages to Mr. Lundborg on a coastwise voyage.

In a 7-2 decision, the state Supreme Court affirmed Division One in essence, but ruled that the trial court should decide whether $8 per day was sufficient to provide Mr. Lundborg with food and lodging during his recuperation, and if not, what amount would be appropriate. The Court took judicial notice that the cost of food and lodging "generally” exceeds $8 per day and that Lundborg had requested $900 per month-or $30 per day-in the trial court to pay for food, utilities, and the mortgage payment on his house in Puyallup. The seven-judge majority refused to let labor law trump the maritime law, ruling that enforcement of a collective bargaining agreement could not be allowed to negate the common law right of a seaman to an adequate level of maintenance. The majority also refused to say that $8 per day abrogates a seaman's right to maintenance as a matter of law; rather, it left to the trial court to decide if food and lodging can be obtained for $8 per day.

Justice Alexander's dissent, joined by Justice Sanders, stated that a rate of maintenance set forth in a collective bargaining agreement was sacrosanct. Although criticizing the majority on the $8 per day issue, the two dissenters concurred on the denial of unearned wages to Mr. Lundborg during coastwise articles. Instead of citing maritime law, Justice Alexander argued labor law: "(T)he majority pays insignificant heed to the fact that every federal appellate court, save one, that has considered the argument advanced by Lundborg, has rejected it and enforced the maintenance rate set forth (in the collective bargaining agreement) . . . " Lundborg v. Keystone, infra. The dissent was upset that the majority ruled contrary to the Ninth Circuit, and worried that the decision, "would encourage future forum shoppers to initiate similar lawsuits in the courts of this state . . . " Id. Justice Alexander misinterpreted the collective bargaining agreement with a wrong-context statement that the shipowner would furnish lodging and subsistence if the seaman could not obtain it for $8 per day. That interpretation of the NMU collective bargaining agreement is erroneous. Justice Alexander also made the naive assumption that merchant seaman always live in the port city they ship out from and may subsist cheaply there, presumably in a house that has been completely paid off. Lundborg v. Keystone Shipping Co., No. 65673-8, 138 Wash.2d____ (7/29/99) (dissenting opinion).

Lundborg v. Keystone is a case twice previously discussed in these pages. See, Trial News issues of March 1996 and July/August 1998. It may be discussed in the future if Keystone petitions for certiorari to the U.S. Supreme Court. Discussion of the unearned wage entitlement is beyond the scope of this article. However, plaintiff shall cross-petition for certiorari regarding unearned wages if Keystone goes to the U.S. Supreme Court first. The deadline to petition for certiorari is October 27, 1999. Keystone's decision in this regard is not known at this dictation.

The full citation is Lundborg v. Keystone Shipping Co., 89 Wash App. 886, modified in part, 138 Wash App.____(1999). Plaintiff is represented by John Merriam. Defendant is represented by Robert Bocko of Keesal Young & Logan.

Shipowners are being thwarted in their efforts to restrict seamen to artificially low rates of maintenance by way of employment contracts. In the situation of union merchant seamen receiving $8 per day maintenance, different rules of law presently apply in neighboring courthouses. In Seattle, for example, different results will obtain at the state and federal courthouses, respectively, five blocks from each other. If and when the U.S. Supreme Court resolves the split between state and federal courts in Washington, the questions will be: Are unions bargaining with that which is not theirs to bargain with; does labor law trump the maritime law, or may any right of workers be bargained away by unions?

If Keystone does not petition for certiorari, Mr. Lundborg will seekan extra $22 per day for the 24 days he was not fit for duty, or $528. Counsel for the plaintiff is on a 1/3 contingent fee.

The present score in this contest is: four federal circuit courts of appeal vs. the State of Washington, the Third Circuit and a couple of federal trial courts in the Second Circuit.

There may be more to come . . .

John Merriam, WSTLA Sustaining member, is a sole-practitioner in Seattle representing seamen on wage and injury claims.